West v. Palmer et al
Filing
3
INITIAL REVIEW ORDER granting 1 MOTION for Leave to Proceed in forma pauperis filed by Cory Blake West. The Clerk of Court shall file Mr. West's Complaint. No filing fee will be assessed. Mr. West's 2 MOTION to Appoint Counsel is gra nted and Jay Denne is appointed. Mr. Denne shall file an amended complaint within 20 days from the date of this Order. The Clerk of Court shall serve the parties by sending by certified mail as set out on the attached service forms. Defendants Judg e Kirk Daily, Lisa Hull, John McCormally, Eric Parrish, Benjamin Bergman, Steven Addington, and Jason Dunn are dismissed. See text of Order for further details.. Signed by Senior Judge Donald E OBrien on 11/29/12. (copy w/nef mailed to pro se plaintiff, copy w/complaint sent via certified mail to all defendants and Gretchen Kramer) (CR Financial) (djs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
CORY BLAKE WEST
Plaintiff,
vs.
No. 12-CV-4059-DEO
INITIAL REVIEW ORDER
CHARLES PALMER, Director of
the Iowa State Department of
Human Resources; ELIZABETH
ROBINSON, Chair of the Iowa
Board of Parole; KAREN
MUELHART, Vice Chair of the
Iowa Board of Parole; WALTER
REED, JR., Iowa Board of
Parole; RICHARD BORDWELL,
Iowa Board of Parole; NANCY
BOYD, Iowa Board of Parole;
CLARENCE KEY, JR., Executive
Director Iowa Board of
Parole; DAN FELL, Director
of Correctional Services
Fairfield Administrative
Office; JASON SMITH,
Director of the Civil
Commitment Program; KIRK
DAILY, Associate District
Court Judge; LISA HULL,
Wapella County Attorney;
JOHN MCCORMALLY, Assistant
Attorney General; ERIC
PARRISH; BENJAMIN BERGMANN,
LARRY MAPES, Warden Newton
Correctional Center; STEVEN
ADDINGTON, Assistant Public
Defender; AND JASON DUNN,
Assistant Public Defender,
Defendants.
____________________
I.
INTRODUCTION AND BACKGROUND
This matter is currently before the Court on Cory West’s
[hereinafter Mr. West] Motion for Leave to Proceed in Forma
Pauperis, Motion for Appointment of Counsel, and 42 U.S.C.
Section
1983
committed
Complaint.
patient
at
the
Mr.
West
Civil
is
an
Commitment
involuntarily
Unit
for
Sex
Offenders (CCUSO) in Cherokee Iowa.1
II.
IN FORMA PAUPERIS
The filing fee for a 42 U.S.C. § 1983 petition is $350.
28 U.S.C. § 1914(a). The doctrine of in forma pauperis allows
a plaintiff to proceed without incurring filing fees or other
Court costs. 28 U.S.C. § 1915(a)(1). However, prisoners must
meet certain requirements in order to have their filing fee
waived. 28 U.S.C. 1915(a)-(b). A prisoner is defined as “any
person
incarcerated
or
detained
in
“violations of criminal law . . . .”
any
facility”
for
28 U.S.C. § 1915(h).
Under the statute, prisoners are required to pay filing fees
1
The patients at CCUSO “have served their prison terms but
in a separate civil trial have been found likely to commit
further violent sexual offenses.”
Iowa Department of Human Services Offer #401-HHS-014: CCUSO,
http://www.dhs.state.ia.us/docs/11w-401-HHS-014-CCUSO.pdf,
last visited November 28, 2012.
2
over time and are not entitled to proceed in forma pauperis as
to filing fees.
Id.
However, CCUSO is not a prison facility;
it “provides a secure, long term, and highly structured
environment for the treatment of sexually violent predators.”2
Moreover, the Iowa Code specifies that the types of persons
confined
at
CCUSO
are
not
prisoners.
They
are
civilly
committed patients who suffer from a “mental abnormality.”
I.C.A. § 229A (generally); I.C.A. § 229A.2(11).
Accordingly,
individuals held due to civil commitment under I.C.A. § 229A
are not prisoners and are not subject to 28 U.S.C. § 1915(a)(b).
See Kolocotronis v. Morgan, 247 F.3d 726, 728 (8th Cir.
2001), stating that those committed to state hospitals are not
prisoners as defined under 28 U.S.C. § 1915; Youngberg v.
Romeo, 457 U.S. 307, 321-22 (1982), stating that individuals
who
are
involuntarily
considerate
treatment
committed
than
“are
criminals
entitled
whose
to
more
conditions
of
confinement are designed to punish;” and Michau v. Charleston
County, S.C., 434 F.3d 725 (4th Cir. 2006), cert. denied
Michau v. Charleston County, S.C., 126 S. Ct. 2936 (2006),
Iowa Department of Human Services Offer #401-HHS-014:
CCUSO,
1
http://www.dhs.state.ia.us/docs/11w-401-HHS-014CCUSO.pdf, last visited November 28, 2012.
2
3
stating that:
[h]owever, [plaintiff] is presently being
detained under the SVPA, which creates a
system of civil, not criminal, detention.
... see also Kansas v. Hendricks, 521 U.S.
346, 365-69(1997) (concluding that Kansas's
Sexually Violent Predators Act established
civil rather than criminal detention
scheme). Because [plaintiff’s] detention
under the SVPA is not the result of a
violation of criminal law, or of the terms
of parole, probation, or a pretrial
diversionary program, he does not meet the
PLRA's definition of [a prisoner]. See ...
Page v. Torrey, 201 F.3d 1136, 1139-40 (9th
Cir.2000)
(concluding
that
a
person
detained under state's civil sexually
violent predator act is not a “prisoner”
within meaning of PLRA). Accordingly, the
PLRA provides no basis for the dismissal of
[plaintiff’s] complaints.
Id. At 727-28. (Some internal citations omitted.)
In order to qualify for in forma pauperis status, a
plaintiff must provide this Court an affidavit3 with the
following statements:
(1) statement of the nature of the
action, (2) statement that plaintiff is entitled to redress,
(3) statement of the assets plaintiff possesses, and (4)
statement that plaintiff is unable to pay filing fees and
3
An affidavit is a “voluntary declaration of facts
written down and sworn to by the declarant before an officer
authorized to administer oaths.” Black’s Law Dictionary (9th
ed. 2009), affidavit.
4
court
costs
1915(a)(1).
or
give
security
therefor.
28
U.S.C.
§
Plaintiff’s applications substantially meets the
above requirements.
Therefore, Mr. West’s Motion to Proceed
in Forma Pauperis is granted.
Mr. West’s Complaint.
The Clerk of Court shall file
No filing fee will be assessed.
However, once any portion of a filing fee is waived, a
court must dismiss the case if a the Petitioners’s allegations
of poverty prove untrue or the action in question turns out to
be frivolous, malicious, fails to state a claim on which
relief may be granted, or seeks monetary relief against a
defendant who is immune from such relief.
28 U.S.C. §
1915(e)(2).
III.
42 U.S.C. § 1983 INITIAL REVIEW STANDARD
Federal Rule of Civil Procedure 8(a)(2) requires “a short
and plain statement of the claim showing that the pleader is
entitled
to
relief.”
Pro
se
complaints,
no
matter
how
“inartfully pleaded are held to less stringent standards than
formal pleadings as drafted by a lawyer.” Hughes v. Rowe, 449
U.S. 5, 9 (1980) (internal citations omitted).
5
Although it is a long-standing maxim that a complaint’s
factual allegations are to be accepted as true at the early
stages of a proceeding, this does not entail that a court must
entertain any complaint no matter how implausible.
The facts
pled “must [still] be enough to raise a right to relief above
the speculative level . . . .”
U.S. 544, 555 (2007).
Bell Atlantic v. Twombly, 550
In other words, the claim to relief
must be “plausible on its face.”
Id. at 570.
A claim is only
plausible if a plaintiff pleads “factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949 (2009).
Where the complaint does “not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged-but it has not ‘show[n]’
- that the pleader is entitled to relief.”
(citing Fed. Rule Civ. Proc. 8(a)(2)).
Id. at 1950
In addition, “the
tenet that a court must accept as true all of the allegations
contained
in
conclusions.”
a
complaint
is
Id. at 1949.
6
inapplicable
to
legal
42 U.S.C. § 1983 provides:
Every person who, under color of any
statute, ordinance, regulation, custom, or
usage, of any State or Territory or the
District of Columbia, subjects, or causes
to be subjected, any citizen of the United
States
or
other
person
within
the
jurisdiction thereof to the deprivation of
any rights, privileges, or immunities
secured by the Constitution and laws, shall
be liable to the party injured in an action
at law, suit in equity, or other proper
proceeding for redress . . . .
IV.
ISSUE AND ANALYSIS
Mr. West’s pro se Complaint makes one basic argument
against a multitude of Defendants.
Mr. West argues that his
original sentence for the crime of assault with the intent to
commit sexual abuse required him to serve a term of supervised
release.
He argues that because he was civilly committed as
soon as he was paroled from prison, his right to parole and/or
supervised release was violated. Mr. West specifically states
that, “On September 1, 2011, a jury verdict came back finding
the
plaintiff
to
be
a
sexually
violent
predator.
The
Plaintiff was under a binding contract by the State of Iowa
from his sentencing Order for Parole as well as a binding
contract by the Iowa Board of Parole to be released to parole.
The plaintiff was never released to this parole as he was told
7
when he entered into the binding agreement dating back to May
22, 2008.”
(Docket No. 1-1).
Some of the Defendants that Mr. West has named in the
present Complaint must be dismissed from this action for
procedural and legal reasons.
The Court will address those
issues before addressing Mr. West’s primary argument.
A.
Kirk Daily, Associate District Court Judge
Mr. West admits in his Complaint that Kirk Daily is an
Associate District Court Judge for the State of Iowa.
“A
judge is immune from suit, including suits brought under
section 1983 to recover for alleged deprivation of civil
rights, in all but two narrow sets of circumstances.
Mireles v. Waco, 502 U.S. 9, 11, 12 (1991).
See
First, a judge is
not immune from liability for nonjudicial actions, i.e.,
actions not taken in the judge's judicial capacity.
Second,
a judge is not immune for actions, though judicial in nature,
taken in the complete absence of all jurisdiction.
(internal citations omitted).
370, 373 (8th Cir. 2012).
Id.
Schottel v. Young, 687 F.3d
Additionally,
8
[t]he Supreme Court has instructed us to
construe broadly the scope of the judge's
jurisdiction ... where the issue is the
immunity of a judge. Thus, [a] judge will
not be deprived of immunity because the
action he took was in error, was done
maliciously, or was in excess of his
authority; rather, he will be subject to
liability only when he has acted in the
clear
absence
of
all
jurisdiction.
Moreover, an action taken in the very aid
of the judge's jurisdiction over a matter
before him cannot be said to have been
taken in the absence of jurisdiction.
Schottel v. Young, 687 F.3d 370 (8th Cir. 2012).
There is no allegation in the Complaint that Judge Daily
was acting outside the scope of his judicial activities.
Mr.
West’s allegation relates to the sentence Judge Daily imposed.
Similarly, there is no allegation that Judge Daily was acting
outside of his jurisdiction.
Accordingly, Judge Daily is
immune from suit and must be dismissed from the case.
B.
Prosecutorial Immunity
Prosecutorial
actions
innately
associated
with
the
judicial phase of the criminal process are protected by
absolute immunity. Anderson v. Larson, 327 F.3d 762, 768 (8th
Cir. 2003).
The need for impartiality and independence has
led the Supreme Court to consistently hold that prosecutors
9
receive absolute immunity for all actions taken as advocates
of the state.
Dorsey v. Walden, 3:12-CV-00136-BRW, 2012 WL
2505219, 1 (E.D. Ark. 2012) citing Imbler v. Pachtman, 424
U.S. 409, 423 (1976).
Mr. West lists Defendant Lisa Hull as
representing the State of Iowa.
she is a Wapella County Attorney.
The Court understands that
According to the documents
that Mr. West submitted, she prosecuted his initial case
before the Iowa District Court.
There is no allegation that
she was acting outside the scope of her duties, and as was
noted above, Mr. West’s allegations relate to the sentence he
received.
Accordingly, Ms. Hull is entitled to immunity and
should be dismissed from this action.
Similarly, Mr. West’s Complaint states that he is suing
Assistant Attorney General John McCormally in Mr. McCormally’s
capacity as a prosecutor.
Accordingly, Mr. McCormally is
entitled to prosecutorial immunity and should be dismissed
from the case.
C.
Defense Counsel
Mr. West’s Complaint names most, if not all, of the
attorneys
who
have
represented
him
as
Defendants.
The
Constitution, with the exception of Section 1983, only allows
10
for causes of action against persons acting "under color" of
state law.
42 U.S.C. § 1983.
A person is acting under color
of state law if their actions meet the Fourteenth Amendment
state action requirement.
U.S. 922, 935 (1982).
Lugar v. Edmondson Oil Co., 457
The Fourteenth Amendment state action
requirement is met when there is such a "‘close nexus between
the State and the challenged action' that seemingly private
behavior ‘may be fairly treated as that of the State itself.'"
Brentwood
Academy
v.
Tennessee
Secondary
School
Athletic
Ass'n, 531 U.S. 288 (2001) (quoting Jackson v. Metropolitan
Edison Co., 419 U.S. 345, 351 (1974)).
"The conduct of
counsel,
in
either
retained
or
appointed,
representing
clients, does not constitute action under color of state law
for purposes of a Section 1983 violation."
Bilal v. Kaplan,
904 F.2d 14, 15 (8th Cir. 1990) (citing Harkins v. Eldredge,
505 F.2d 802, 803 (8th Cir. 1974)).
Appointed counsel for
involuntary committees are, in fact, opposing the Government.
Therefore, absent allegations sufficient to sustain a finding
that Mr. West’s attorneys conspired with the Iowa Assistant
Attorney
General
or
administrators
or
employees
of
the
Department of Human Services, there can be no cause of action
11
against them.
Mr. West’s claims against Eric Parrish, Ben
Bergmann, Steven Addington, and Jason Dunn are dismissed.
D.
Claim Regarding Supervised Release
As discussed above, Federal Rule of Civil Procedure
8(a)(2) requires “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
The facts
pled “must [still] be enough to raise a right to relief above
the speculative level . . . .”
U.S. 544, 555 (2007).
Bell Atlantic v. Twombly, 550
In other words, the claim to relief
must be “plausible on its face.”
Id. at 570.
Additionally it
must be noted that, “Section 1983 ‘is not itself a source of
substantive
rights,’
but
merely
provides
‘a
method
for
vindicating federal rights elsewhere conferred.’” Albright v.
Oliver, 510 U.S. 266, 811 (1994) (quoting Baker v. McCollan,
443 U.S. 137, 144, n. 3 (1979)).
Thus, as a threshold issue,
court’s must determine whether a plaintiff has alleged the
violation of a federal right.
510 U.S. at 811.
If there is
no alleged violation of a federal right, there is no cause of
action.
In this case, Mr. West alleges his due process rights
were violated when he was denied the ability to serve custody
12
free parole after his incarceration ended.
Courts have
repeatedly found there to be no constitutional right to
parole.
“Defendant does not have a constitutional right to
probation.
State v. Holmes, 276 N.W.2d 823, 830 (Iowa 1979).
Neither does he have a constitutional right to parole.
v. Cole, 168 N.W.2d 37, 39-40 (Iowa 1969).”
309 N.W.2d 891, 893 (Iowa 1981).
State
State v. Wright,
That said, early release
statutes can create a liberty interest protected by due
process guarantee.
See Swarthout v. Cooke, 131 S. Ct. 859,
862 (2011) reh'g denied, 131 S. Ct. 1845, 179 L. Ed. 2d 796
(2011), stating that:
Whatever liberty interest exists is, of
course, a state interest created by
California law. There is no right under
the
Federal
Constitution
to
be
conditionally
released
before
the
expiration of a valid sentence, and the
States are under no duty to offer parole to
their prisoners.
When, however, a State
creates a liberty interest, the Due Process
Clause requires fair procedures for its
vindication and federal courts will review
the application of those constitutionally
required procedures.
In the context of
parole, we have held that the procedures
required are minimal.
Swarthout v. Cooke, 131 S. Ct. 859, 862 (2011).
13
At this initial stage of the case, the Court cannot say
for
certain
that
that
supervised release.
rational
will
not
also
apply
to
Accordingly, Mr. West may have a valid
claim that the remaining Defendants have violated his due
process rights by denying him his liberty interest in his
supervised release and parole.
To that extent, Mr. West’s
claim will be allowed to proceed past the initial review
stage.
E.
Other Issues
Mr.
West’s
against
the
effectiveness
Complaint
validity
of
his
also
of
trial
his
includes
broad
incarceration
counsel.
The
arguments
and
Court
has
the
no
jurisdiction under 42 U.S.C. § 1983 regarding the substance of
Mr. West’s claims, to the extent that Mr. West is challenging
the validity of his incarceration or that he was denied
effective assistance of counsel when counsel failed to advise
him that he could be civilly committed upon his release from
prison.
state
Those are claims that must initially be brought in
court
actions.
See
28
U.S.C.
§
2254(b)(1)(A).
Accordingly, to the extent Mr. West is claiming ineffective
14
assistance of counsel or that his incarceration is invalid,
those claims are dismissed without prejudice.
V.
APPOINTMENT OF COUNSEL
28
U.S.C.
§1915(e)(1)
provides
that
appointment
of
counsel for a person unable to afford counsel is within this
Court’s
discretion.
situation
and
the
Given
nature
Mr.
of
West’s
his
Appointment of Counsel is granted.
current
claim,
his
financial
Motion
for
The Clerk of Court shall
appoint Jay Denne as appointed counsel to this case pursuant
to Library Fund Administrative Order No. 12-AO-0013. Mr. Jay
Denne is hereby appointed as Plaintiff’s counsel, and the
Clerk’s office shall forward a copy of this Order to Mr.
Denne.
Mr. Denne shall file an amended complaint within
twenty (20) days from the date of this Order.
VI. CONCLUSION
For the reasons set out above:
Mr. West’s application to proceed in forma pauperis is
granted.
The Clerk of Court shall file Mr. West’s Complaint.
No filing fee will be assessed.
The Clerk of Court shall
serve the parties by sending by certified mail as set out on
the attached service forms. Defendants Judge Kirk Daily, Lisa
15
Hull, John McCormally, Eric Parrish, Benjamin Bergman, Steven
Addington, and Jason Dunn are dismissed.
Mr. West’s due
process claim under 42 U.S.C. § 1983 is allowed to proceed.
Mr. West’s application for the appointment of counsel is
granted and Jay Denne is appointed under 12-AO-0013.
Mr.
Denne shall file an amended complaint within twenty (20) days
from the date of this Order.
ineffective
assistance
To the extent Mr. West alleges
of
counsel
and
an
invalid
incarceration, his claims are dismissed.
IT IS SO ORDERED this 29th day of November, 2012.
__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa
16
NOTICE OF LAWSUIT
and REQUEST FOR
WAIVER OF SERVICE OF SUMMONS
TO THE NAMED DEFENDANT(S) IN THE FOLLOWING CAPTIONED ACTION:
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
CORY BLAKE WEST,
Plaintiff,
No. 12-CV-4059-DEO
vs.
CHARLES PALMER, et al.,
Defendants.
___________________________
A lawsuit has been commenced against you (or the entity on whose behalf you are addressed). A
copy of the complaint and a copy of the corresponding order from this Court are attached. This complaint
has been filed in the United States District Court for the Northern District of Iowa.
Pursuant to Rule 4 of the Federal Rules of Civil Procedure, you have an obligation to cooperate
in saving unnecessary costs of service of summons and complaint. Please sign the enclosed document
where appropriate acknowledging receipt of the complaint and notice of this pending lawsuit and waiving
formal service of summons. After signing the enclosed document, please return it to the United States
.
Clerk’s Office in the envelope provided within thirty (30) days of this date:
I affirm that this notice and request for waiver of service of summons is being sent to you on behalf
, 2012.
of the plaintiff, this
Signature (Clerk’s Office Official)
Northern District of Iowa
17
ACKNOWLEDGMENT OF RECEIPT OF
NOTICE OF LAWSUIT,
and WAIVER OF SERVICE OF SUMMONS
(**Return this document within thirty days after ______________________________, to the United States
Clerk’s Office in the envelope provided.)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
CORY BLAKE WEST,
Plaintiff,
No. 12--CV-4059-DEO
vs.
CHARLES PALMER, et al,
Defendants.
___________________________
I acknowledge receipt of the complaint and notice of the lawsuit in which I (or the entity on whose
behalf I am addressed) have been named a defendant. I have received and/or read the complaint
accompanying this document.
I agree to save the cost of service of a summons and an additional copy of the complaint by not
requiring that I (or the entity on whose behalf I am acting) be served with judicial process in the manner
provided by Rule 4 of the Federal Rules of Civil Procedure. I hereby waive service of summons.
I (or the entity on whose behalf I am acting) will retain all defenses or objections to the lawsuit or
to the jurisdiction or venue of the Court except for objections based on a defect in the service of summons.
I understand that a judgment may be entered against me (or the entity on whose behalf I am acting) if an
answer or motion under Rule 12 of the Federal Rules of Civil Procedure is not served within 60 days after
, (the date Notice, Waiver and corresponding documents were sent) or the date
the amended complaint is filed (whichever date is latest).
Date
Signature
Printed name
As
(Title)
of
(Entity)
Address Form
Case Number: 12-CV-4059-DEO
To:
RE:
Date: _____________________
Clerk of Court
Service on Named Defendants
Below, please find the known (or likely) addresses for the following
persons/entities who have been named as defendants to this action:
Defendant:
ALL DEFENDANTS
c/o Civil Commitment Unit for Sexual Offenders
1251 West Cedar Loop
Cherokee, Iowa 51012
Gretchen Witte Kraemer
Department of Justice
Regents and Human Services Division
Hoover Building
Des Moines, Iowa 50319-0109
19
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